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Commission on Professionalism PROFESSIONAL IDEALS for & On the Cover: The Words of grace the North Reflecting Pool at the Thomas J. Moyer Ohio Judicial Center. Carved from granite, the words – Compassion, , Honesty, Honor, Integrity, Justice, , Reason, Truth, and Wisdom – represent the foundational ideals of the judicial branch and are a reminder of the fundamental principles of justice. PROFESSIONAL IDEALS FOR OHIO LAWYERS & JUDGES

MAUREEN O’CONNOR Chief Justice

SHARON L. KENNEDY PATRICK F. FISCHER R. PATRICK DeWINE MICHAEL P. DONNELLY MELODY J. STEWART JENNIFER BRUNNER

STEPHANIE E. HESS Interim Administrative Director

TABLE OF CONTENTS

page Introduction 1

From the Statement on Professionalism 3

A ’s Creed 4 A Lawyer’s Aspirational Ideals 5

Statement Regarding the Provision of Pro Bono Legal Services 9 by Ohio Lawyers

From the Statement on Judicial Professionalism 11 A Judicial Creed 12

Professionalism DOs & DON’Ts 13

Judicial Professionalism 15

Working with Opposing & Other Lawyers 21 Legal Writing 25 Conduct of & Attorneys 29 Depositions 35

Professionalism in the Courtroom 39 Commission on Professionalism 43

Chairs of the Commission on Professionalism 44

INTRODUCTION

he following pages contain A Lawyer’s Creed, A Lawyer’s Aspirational TIdeals and A Judicial Creed, which were adopted by the Supreme of Ohio upon recommendation by the Commission on Professionalism. These statements encapsulate the ideals of professionalism for lawyers and judges.

Included in the professionalism ideals for lawyers and judges are integrity, the achievement and maintenance of competence, a commitment to a life of service, and the quest for justice for all. Professionalism requires lawyers and judges to remain mindful that their primary obligations are to the institutions of and the betterment of society, rather than to the interests of their clients or themselves.

Also included in these materials is the Supreme Court Statement Regarding the Provision of pro bono Legal Services by Ohio Lawyers, which speaks to a lawyer’s obligations to ensure equal access to justice and to serve the public good.

Finally, these contents feature Professionalism DOs & DON’Ts, which provide guidelines for professional behavior in various contexts of legal practice. Attorneys and judges who adhere to and promote the best practices depicted in the Professionalism DOs & DON’Ts will elevate the level of professionalism in the .

1 from the statement on professionalism

. . .As professionals we need to strive to meet lofty goals and ideals in order to achieve the highest standards of a learned profession. To this end, the Court issues A Lawyer’s Creed and A Lawyer’s Aspirational Ideals, which have been adopted and recommended for the Court’s issuance by the Supreme Court Commission on Professionalism. In so doing, it is not the Court’s intention to regulate or to provide additional bases for discipline, but rather to facilitate the promotion of professionalism among Ohio’s lawyers, judges and legal educators. It is the Court’s hope that these individuals, their professional associations, law firms and educational institutions will utilize the creed and the aspirational ideals as guidelines for this purpose.

Issued by the Supreme Court of Ohio February 3, 1997

3 a lawyer’s creed TO MY CLIENTS, I offer loyalty, confidentiality, competence, diligence and my best . I shall represent you as I should want to be represented and be worthy of your trust. I shall counsel you with respect to alternative methods to resolve disputes. I shall endeavor to achieve your lawful objectives as expeditiously and economically as possible.

TO THE OPPOSING PARTIES and THEIR COUNSEL, I offer fairness, integrity and civility. I shall not knowingly make misleading or untrue statements of fact or law. I shall endeavor to consult with and cooperate with you in scheduling meetings, depositions and hearings. I shall avoid excessive and abusive discovery. I shall attempt to resolve differences and, if we fail, I shall strive to make our dispute a dignified one.

TO THE and OTHER , and TO THOSE WHO ASSIST THEM, I offer respect, candor and courtesy. Where consistent with my client’s interests, I shall communicate with opposing counsel in an effort to avoid or resolve litigation. I shall attempt to agree with other counsel on a voluntary exchange of information and on a plan for discovery. I shall do honor to the search for justice.

TO MY COLLEAGUES in the practice of law, I offer concern for your reputation and well-being. I shall extend to you the same courtesy, respect, candor and dignity that I expect to be extended to me.

TO THE PROFESSION, I offer assistance in keeping it a calling in the spirit of public service, and in promoting its understanding and an appreciation for it by the public. I recognize that my actions and demeanor reflect upon our system of justice and our profession, and I shall conduct myself accordingly.

TO THE PUBLIC and our SYSTEM OF JUSTICE, I offer service. I shall devote some of my time and skills to community, governmental and other activities that promote the common good. I shall strive to improve the law and our legal system and to make the law and our legal system available to all.

4 a lawyer’s aspirational ideals AS TO CLIENTS, I shall aspire: a) To expeditious and economical achievement of all client objectives. b) To fully informed client decision-making. I should: 1) Counsel clients about all forms of 2) Counsel clients about the value of cooperation as a means toward the productive resolution of disputes 3) Maintain the sympathetic detachment that permits objective and independent advice to clients 4) Communicate promptly and clearly with clients, and 5) Reach clear agreements with clients concerning the nature of the representation. c) To fair and equitable fee agreements. I should: 1) Discuss alternative methods of charging fees with all clients 2) Offer fee arrangements that reflect the true value of the services rendered 3) Reach agreements respecting fees with clients as early in the relationship as possible 4) Determine the amount of fees by consideration of many factors and not just time spent, and 5) Provide written agreements as to all fee arrangements. d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve fidelity to clients. e) To achieve and maintain a high level of competence in my field or fields of practice.

AS TO OPPOSING PARTIES and THEIR COUNSEL, I shall aspire: a) To cooperate with opposing counsel in a manner consistent with the competent representation of my client. I should: 1) Notify opposing counsel in a timely fashion of any canceled appearance

5 2) Grant reasonable requests for extensions or scheduling changes, and 3) Consult with opposing counsel in the scheduling of appearances, meetings and depositions. b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. I should: 1) Not serve motions or pleadings in such a manner or at such a time as to preclude opportunity for a competent response 2) Be courteous and civil in all communications 3) Respond promptly to all requests by opposing counsel 4) Avoid rudeness and other acts of disrespect in all meetings, including depositions and negotiations 5) Prepare documents that accurately reflect the agreement of all parties, and 6) Clearly identify all changes made in documents submitted by opposing counsel for review.

AS TO THE COURTS and OTHER TRIBUNALS, and TO THOSE WHO ASSIST THEM, I shall aspire: a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient and humane system of justice. I should: 1) Avoid nonessential litigation and nonessential pleading in litigation 2) Explore the possibilities of settlement of all litigated matters 3) Seek noncoerced agreement between the parties on procedural and discovery matters 4) Avoid all delays not dictated by competent representation of a client 5) Prevent misuses of court time by verifying the availability of key participants for scheduled appearances before the court and by being punctual, and 6) Advise clients about the obligations of civility, courtesy, fairness, cooperation and other proper behavior expected of those who use our system of justice.

6 b) To model for others the respect due to our courts. I should: 1) Act with complete honesty 2) Know court rules and procedures 3) Give appropriate deference to court rulings 4) Avoid undue familiarity with members of the judiciary 5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of the judiciary 6) Show respect by attire and demeanor 7) Assist the judiciary in determining the applicable law, and 8) Give recognition to the judiciary’s obligations of informed and impartial decision-making.

AS TO MY COLLEAGUES IN THE PRACTICE OF LAW, I shall aspire: a) To recognize and develop a professional interdependence for the benefit of our clients and the legal system b) To defend you against unjust criticism, and c) To offer you assistance with your personal and professional needs.

AS TO OUR PROFESSION, I shall aspire: a) To improve the practice of law. I should: 1) Assist in continuing efforts 2) Assist in organized activities 3) Assist law schools in the education of our future lawyers, and 4) Assist the judiciary in achieving objectives of A Lawyer’s Creed and these aspirational ideals. b) To promote the understanding of and an appreciation for our profession by the public. I should: 1) Use appropriate opportunities, publicly and privately, to comment upon the roles of lawyers in society and , as well as in our system of justice, and

7 2) Conduct myself always with an awareness that my actions and demeanor reflect upon our profession. c) To devote some of my time and skills to community, governmental and other activities that promote the common good.

AS TO THE PUBLIC and OUR SYSTEM OF JUSTICE, I shall aspire: a) To consider the effect of my conduct on the image of our system of justice, including the effect of advertising methods. b) To help provide the pro bono representation that is necessary to make our system of justice available to all. c) To support organizations that provide pro bono representation to indigent clients. d) To promote equality for all persons. e) To improve our and legal system, by for example: 1) Serving as a public official 2) Assisting in the education of the public concerning our laws and the legal system 3) Commenting publicly upon our laws 4) Using other appropriate methods of effecting positive change in our laws and the legal system.

8 statement regarding the provision of pro bono legal services by ohio lawyers ach day, Ohioans require legal assistance to secure basic needs such as Ehousing, education, employment, health care, and personal and family safety. Many persons of limited means are unable to afford such assistance, and programs must concentrate limited resources on those matters where the needs are most critical. The result is that many Ohioans who are facing significant legal problems do not have access to affordable legal services. These persons are forced to confront landlord-tenant issues, have questions involving employment rights, or seek protection against domestic violence without the assistance of a legal advocate. In 1997, this Court issued a Statement on Professionalism that recognizes each lawyer’s obligation to engage in activities that promote the common good, including the provision of and support for pro bono representation to indigent clients. In 2007, in the Preamble to the Ohio Rules of Professional Conduct, the Court reemphasized the importance of this obligation by stating: A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for those who because of economic or social barriers cannot afford or secure legal counsel. Lawyers, law firms, bar associations, and legal services organizations, such as the Ohio Legal Assistance Foundation, have done and continue to do much to address unmet civil legal needs through the organization of, support for, and participation in pro bono legal services programs. Although these programs have increased both in number and scope in recent years, there remains an urgent need for more pro bono services. This Court strongly encourages each Ohio lawyer to ensure access to justice for all Ohioans by participating in pro bono activities. There are pro bono programs available throughout Ohio that are sponsored by bar associations, legal aid programs, churches and civic associations. Many programs offer a variety of free legal services, while others concentrate on specific legal needs. Lawyers also may choose to participate in programs that focus on the needs of specific individuals such as senior citizens, the disabled, families of personnel or immigrants.

9 The website, www.ohiolegalaid.org/pro-bono, contains a complete, searchable listing of pro bono programs and opportunities in Ohio. A lawyer may fulfill this professional commitment by providing legal counsel to charitable organizations that may not be able to afford to pay for legal services or by making a financial contribution to an organization that provides legal services to persons of limited means.

The Court recognizes that many Ohio lawyers honor their professional commitment by This Court strongly regularly providing pro bono legal services or financial support to encourages each Ohio lawyer pro bono programs. Moreover, to ensure access to justice the Court encourages lawyers to respond to this call by seeking for all Ohioans ... to engage in new or additional pro bono opportunities. To document the efforts and commitment of the to ensure equal access to justice, the Court, in conjunction with the Ohio Legal Assistance Foundation, will develop a means by which Ohio lawyers may report voluntarily and anonymously their pro bono activities and financial support for legal aid programs. The information regarding pro bono efforts will not only underscore the commitment of the legal profession to serving the public good but also will serve as a constant reminder to the bar of the importance of pro bono service.

Issued by the Supreme Court of Ohio September 20, 2007

Visit www.ohioprobono.org for more information.

10 from the statement on judicial professionalism

. . .In recognition of the unique standards of professionalism required of a or a lawyer acting in a judicial capacity, the Court issues A Judicial Creed upon the recommendation of the Supreme Court Commission on Professionalism. It is the Court’s goal by adopting this creed to remind every judge and every lawyer acting in a judicial capacity of the high standards expected of each by the public whom they serve.

Issued by the Supreme Court of Ohio July 9, 2001

11 a judicial creed For the purpose of publicly stating my beliefs, convictions and aspirations as a member of the judiciary or as a lawyer acting in a judicial capacity in the of Ohio: I RE-AFFIRM my oath of office and acknowledge my obligations under the Canons of Judicial Ethics. I RECOGNIZE my role as a guardian of our system of dedicated to equal justice under law for all persons. I BELIEVE that my role requires scholarship, diligence, personal integrity and a dedication to the attainment of justice. I KNOW that I must not only be fair but also give the appearance of being fair. I RECOGNIZE that the dignity of my office requires the highest level of judicial demeanor. I WILL treat all persons, including litigants, lawyers, witnesses, jurors, judicial colleagues and court staff with dignity and courtesy and insist that others do likewise. I WILL strive to conduct my judicial responsibilities and obligations in a timely manner and will be respectful of others’ time and schedules. I WILL aspire every day to make the court I serve a model of justice and truth.

12 13

JUDICIAL PROFESSIONALISM

15 JUDICIAL PROFESSIONALISM

As the guardians of our legal system, judges are expected to establish and maintain the highest level of professionalism. The way in which judges manage their dockets, interact with counsel, and preside over their courtrooms sets a standard of professionalism for the attorneys who appear before them. Just as significantly, the words and actions of judges also shape the public’s perception of the justice system. Being a judge requires diligence, personal integrity, and a dedication to the attainment of justice. With these principles in mind, the Supreme Court of Ohio Commission on Professionalism prepared this list of “DOs and DON’Ts” to guide judges in carrying out their responsibilities. In creating this list, the commission does not intend to regulate or to provide additional bases for discipline, but rather to help promote professionalism among Ohio’s judges. The commission encourages all judges to employ these practices in their daily routines, and in so doing, make lawyers and litigants feel welcome in their courtrooms and assured that disputes will be resolved in an efficient, timely, and just manner.

in PRETRIAL MATTERS DO • Do provide litigants, in advance of • Do remember that ’ an initial pretrial hearing or case awareness of your accessibility may management conference, notice have the effect of decreasing a need of specific procedures that you for your actual involvement or the wish counsel to follow that may likelihood of counsel filing motions differ from those followed in other to compel discovery. courtrooms (e.g., regarding voir • Do conduct final pretrial dire, instructions, note taking conferences yourself to the extent by or questions from jurors, etc.). possible. If a conflict in your • Do use a case management order schedule arises, allow parties the with all pertinent deadlines for each opportunity to reschedule before case, including specific dates for delegating the responsibility to a the completion of fact and expert staff attorney. Remember that the discovery and the filing of certain presence of the judge at the final motions. pretrial conference often helps • Do be accessible to parties to facilitate a settlement. resolve discovery disputes, either by telephone conference or court hearing.

16 The DOs & DON’Ts of Judicial Professionalism

in SCHEDULING DO • Do freely grant a motion to extend • Do tell attorneys that if they want to case deadlines if the extension put something on the record, they will not adversely affect any date will be permitted to do so, subject previously set or will not otherwise to the court’s determination as to the prejudice a party. appropriate time, place, and manner. • Do be aware of attorneys’ • Do treat parties, litigants, and others professional and personal schedules with respect and dignity and create (including vacation time) before an environment where all persons are setting a court date or denying a treated fairly and believe that they timely motion for continuance. have been fully heard. • Do perform a proper triage in • Do instruct the members of your managing scheduling conflicts staff to treat all court visitors with between cases. the same respect that they themselves • Do weigh the consequences, cost, would expect. and additional expenditure of time • Do be patient and temperate, and resources that are likely to result especially under trying from cancelling one proceeding and circumstances. moving forward on another.

in CONDUCTING HEARINGS & DO • Do enforce standards in your jargon, briefly explaining the courtroom consistent with reasoning for rulings, and, where Professionalism DOs and DON’Ts: appropriate, referring them to Professionalism in the Courtroom available resources that may assist and encourage attorneys to follow them. the other publications of the Supreme • Do address all participants formally Court of Ohio Commission on and consistently in court by using an Professionalism. appropriate , such as Ms., Mr., • Do take the promptly and Mrs., Counsel, Dr., Rev., etc. begin hearings at the scheduled time. • Do be aware of your mood and take Alert parties of any delay or conflict necessary breaks to decompress so with as much advance notice as that you can render the next decision possible. refreshed. • Do consider making reasonable • Do make decisions after the accommodations for self-represented conclusion of a bench in such litigants, such as summarizing a manner as will make the litigants the nature of the proceedings and feel that their arguments were fully the presentation and admission considered. of , using commonly • Do deliver the decision or sentence in understood words, instead of legal a formal, dignified, and neutral tone.

17 The DOs & DON’Ts of Judicial Professionalism

in RULING ON MOTIONS DO • Do prepare for motion hearings by the collateral expense incurred, as reading all relevant memoranda of well as the frustration attorneys and law in advance of the hearing. parties experience, when rulings are • Do listen to and consider each not made in a timely manner. party’s position, and provide all • Do what you believe to be the parties with adequate opportunities right thing and trust that, if it turns to respond, before ruling. out that your ruling was wrong, • Do issue timely rulings once the error will, in all likelihood, be motions become ripe, remembering corrected on review.

in OTHER ACTIVITIES DO • Do bring to a lawyer’s attention any • Do consider teaching at bar instance of the lawyer exhibiting a association and judicial association lack of civility or professionalism. CLE functions, mock trials, the • Do encourage lawyers to engage in Law and Leadership Institute, pro bono service. classroom visits, and other • Do consider providing law educational activities. students the opportunity to intern • Do bear in mind that dialogue or extern in your court, as well as between the bench and bar participating in mentoring programs promotes a strong legal community that guide new lawyers in their and a more effective judicial system transition into practice. and so participate actively in the • Do accept criticism, justified or activities and committees of your unjustified, even though you may state and local bar associations, not, or should not, respond. judicial conferences, and judicial associations. • Do remember that the public or private functions you attend may affect confidence in the judiciary.

18 The DOs & DON’Ts of Judicial Professionalism

DON’T • Don’t hold attorneys or litigants • Don’t permit profanity and accountable for events beyond their expressions of vengeance from control. attorneys, victims, or witnesses • Don’t chastise, correct, or question to invade a formal sentencing attorneys in a demeaning manner, proceeding. especially in front of their clients or • Don’t hesitate to ask for post-hearing the jury. briefs or proposed findings of fact or • Don’t take an overly familiar tone conclusions of law if you believe that with any lawyer, litigant, or witness these post-hearing submittals will be while in court and on the record. helpful or appropriate. Recognize how your interactions may • Don’t be worried about whether you be perceived by adverse counsel, by will be appealed or what a reviewing parties, by jurors, or by spectators. court may say. • Don’t threaten or disclose how you • Don’t disparage any attorney are leaning on a dispositive motion as or fellow judge in your private a means of forcing a settlement. conversations. • Don’t use the contempt power lightly. • Don’t attend an event if your • Don’t conduct a hearing, sentence attendance could cause a reasonable a defendant, or render an important person to question your later decision in a state of anger or impartiality in a pending case. depression. • Don’t demean or mock a defendant at a criminal sentencing hearing or in any written opinion.

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WORKING WITH OPPOSING COUNSEL & OTHER LAWYERS

21 WORKING WITH OPPOSING COUNSEL & OTHER LAWYERS

Under “A Lawyer’s Creed” issued by the Supreme Court of Ohio in February 1997, Ohio lawyers pledge to offer fairness, integrity, and civility to opposing parties and their counsel. The Supreme Court of Ohio Commission on Professionalism prepared this list of “DOs and DON’Ts” to illustrate some of the ways lawyers can fulfill this pledge in their everyday communication with opposing counsel and other lawyers. In creating this list, it is not the commission’s intention to regulate or to provide additional bases for discipline, but rather to facilitate the promotion of professionalism among Ohio’s lawyers. By following these practices, lawyers will elevate the level of professionalism in their day-to-day interactions with other lawyers. DO • Do maintain a courteous and fair-minded with respect to requests cooperative working relationship for stipulations, and DO agree to with opposing counsel and other stipulate to facts that are not in lawyers. dispute if they will not adversely • Do avoid motions about minor affect your client. issues that should be worked out • Do respond in a timely fashion to informally. communications from opposing • Do wait 24 hours before deciding to counsel and other attorneys. respond to an intemperate, untrue, • Do keep your word. or exasperating communication • Do identify the changes you from another attorney. made from previous drafts when • Do discuss discovery disputes with exchanging document drafts. opposing counsel in person, by • Do promptly notify other counsel phone, or by email before sending (and, where appropriate, the court a formal letter that stakes out your or other persons who are affected) position. when hearings, depositions, • Do consult in advance with other meetings, or conferences must be attorneys to avoid scheduling cancelled or postponed. conflicts. • Do conclude a matter with a • Do cooperate with other attorneys handshake or an exchange of when you have obtained permission courteous messages. of the court to extend deadlines • Do require that persons under your imposed by a court order. supervision conduct themselves • Do extend professional courtesies with courtesy and civility and that regarding procedural formalities they adhere to these precepts when and scheduling when your client dealing with other attorneys and will not suffer prejudice, DO be their staffs.

22 The DOs & DON’Ts of Working with Opposing Counsel & Other Lawyers

DON’T • Don’t respond in kind when • Don’t be belligerent, insulting, or confronted with unprofessional demeaning in your communications behavior by another attorney. with other attorneys or their staff. • Don’t serve papers at a time or in a • Don’t use discovery as a means of manner intended to inconvenience or harassment. take advantage of opposing counsel, • Don’t publicly disparage another such as late on a Friday afternoon, on attorney, either during or after a case the day preceding a holiday, or when concludes. you know counsel is absent or ill.

23

LEGAL WRITING

25 LEGAL WRITING

A substantial part of the practice of most lawyers is conducted through the written word. Lawyers communicate with other attorneys, courts, and clients through writing. Writings introduce judges to the facts of a case, state the applicable law, and argue for a desired action or resolution to a legal dispute. The most effective legal writing is well-researched, clearly organized, logically sound, and professional in tone and appearance.

The Supreme Court of Ohio Commission on Professionalism has prepared this list of “DOs and DON’Ts” to guide lawyers in their professional writing. These points relate to many facets of attorney writing. In creating this list, the commission does not intend to regulate or to provide additional bases for discipline, but rather to help promote professionalism among Ohio’s lawyers. The list provides general categories of “DOs and DON’Ts” containing specific recommendations on form and content for specific types of writing.

DO • DO MAINTAIN PROPER FOCUS • DO PRESENT AN HONEST, • Do keep your purpose in mind ACCURATE POSITION while writing. • Do include all relevant facts. • Do tailor your writing to your • Do cite the record accurately. primary audience, but be aware • Do disclose relevant authority, that others may read what you including adverse controlling have written. authority. • Do update all cited authorities • DO PROVIDE A CONSISTENT, and exclude any reversed or COHERENT ARGUMENT overruled case. • Do research the applicable law thoroughly. • DO ADOPT A CLEAR & • Do investigate the facts PERSUASIVE STYLE diligently. • Do put material facts in context. • Do plan and organize your • Do write in a professional and writing. dignified manner. • Do make sure that any legal • Do put citations at the end of a theory you present is consistent sentence. with applicable law. • Do use pinpoint citations when • Do use persuasive authority. they would be helpful. • Do state clearly what you are requesting in motions and briefs.

26 The DOs & DON’Ts of Legal Writing

DO • DO PROVIDE APPROPRIATE • Do edit and redraft. SIGNPOSTS • Do cite cases and authorities • Do consider using headings and accurately. summaries. • Do use Ohio citation form (See • Do use transitions between Supreme Court of Ohio Writing sections that guide the reader Manual1). from one argument to the next, • Do adhere to the applicable court’s especially in longer pieces of technical requirements and rules for writing. submitting documents, such as, for example, any restrictions on fonts, • DO USE PRECISE ENGLISH margins, and document length. GRAMMAR & CITATION FORM • Do proofread for spelling and grammar.

DON’T • DON’T MAKE YOUR READER’S • DON’T MAKE INAPPROPRIATE JOB MORE DIFFICULT COMMENTS • Don’t use jargon or confusing • Don’t make ad hominem attacks. acronyms. • Don’t use hyperbole and sarcasm. • Don’t use boilerplate without • Don’t use overly emotional tailoring to your specific arguments. Rely on logic and argument or case. reason. • Don’t use string citations, unless parenthetical explanations follow. • DON’T MISCHARACTERIZE • Don’t use lengthy quotations. YOUR POSITION Break up quoted language as necessary to simplify points. • Don’t misrepresent. • Don’t put important information • Don’t misquote. in footnotes. • Don’t rely on non-record facts. • Don’t overuse nominalizations, • Don’t plagiarize. i.e., noun forms of verbs • Don’t lie. (e.g., “indication” instead of “indicate”). • Don’t overuse the passive voice.

1See sc.ohio.gov/ROD/manual.pdf.

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CONDUCT OF PROSECUTORS & DEFENSE ATTORNEYS

29 CONDUCT OF PROSECUTORS & DEFENSE ATTORNEYS

The integrity of our system depends, in large part, upon the professionalism of the lawyers who prosecute criminal matters on behalf of the state and the defense attorneys who defend the accused. In a criminal matter, the rights of the victim, the protection of the public, and the liberty of the defendant are at stake. Considering the importance of these interests, perhaps nowhere in the practice of law is it more important for attorneys to act with professionalism and to serve our system of justice honorably. The Supreme Court of Ohio Commission on Professionalism, with the assistance of members of the Ohio Prosecuting Attorneys Association and the Ohio Association of Criminal Defense Lawyers, prepared this list of “DOs and DON’Ts” to guide attorneys who practice . In creating this list, the commission does not intend to regulate or provide additional bases for discipline, but rather to help promote professionalism among Ohio’s lawyers.

for PROSECUTORS DO • Do remember your job is not to • Do be realistic about the strengths “win,” but to help administer and weaknesses of your case as it justice. evolves and circumstances change. • Do go forward with a case only if Be willing to adjust your position as you have a good-faith belief in the justice requires. guilt of the defendant. • Do take any doubts about the • Do remember that the power of the sufficiency of the evidence state is not personal to an individual supporting the government’s case to and that you should your supervisor, and document the always use prosecutorial power fact that you took that step. judiciously, with personal humility. • Do provide discovery in a timely • Do remain in control of your case manner. Have discovery materials and remember that you – not the ready within a reasonable period , not the investigator, and of time after request, and promptly not the victim – are the person inform defense counsel of delays. in charge, that your client is the • Do respond to communications government, and that your ultimate from the victim and his or her goal is the furtherance of justice. family. Be attentive to their • Do periodically and regularly concerns and be mindful that they review your case from the point of may not be familiar with court view of the defense. This practice procedures or proceedings. will help you provide exculpatory evidence in a timely fashion.

30 The DOs & DON’Ts of Conduct of Prosecutors & Defense Attorneys

for PROSECUTORS DON’T • Don’t forget that your role is the • Don’t be vindictive or punitive to obtainment of justice, which does not defendants who are exercising their always mean a conviction. rights. The mere filing of a motion to • Don’t pursue a charge if the evidence suppress, a request for search warrant is not there. affidavits, a discovery demand, or • Don’t be rude to defense counsel, the exercise of a defendant’s right who is simply advocating for his or to trial does not justify adding her client. additional and unnecessary charges or recommending a harsher sentence.

for DEFENSE ATTORNEYS DO • Do advocate for your client, listen to • Do meet with your client regularly your client, and treat your client with throughout the representation. respect. • Do contact the prosecutor with • Do advocate creatively, but questions or concerns about discovery reasonably. Remember that your before filing a motion to compel or a credibility will affect this client and motion for a continuance. all of your clients, present and future. • Do promptly file a notice of • Do determine the type of fee appearance when taking over a case agreement that is best for your client, as retained counsel from appointed i.e., hourly or flat fee. Do enter into counsel, so that appointed counsel a written fee agreement with your can file a motion to withdraw, and client as early as feasible. ask appointed counsel to provide you • Do explain to your client, as early as with all pleadings and all discovery feasible, your dual role as an adviser materials and other case information and as defender. he or she obtained. • Do respond to communications from • Do prepare accordingly when the defendant’s family, as long as the appearing in a court in which you information sought is not protected haven’t appeared before. Check the by the attorney-client privilege. Be court’s website, or with the court attentive to their concerns and be staff, and, if necessary, the judge, mindful that they may not be familiar in order to familiarize yourself with with court procedures or proceedings. local rules and the general practices of that court.

31 The DOs & DON’Ts of Conduct of Prosecutors & Defense Attorneys

for DEFENSE ATTORNEYS DON’T • Don’t suggest to your client that • Don’t demean your client in you can get a certain result or make conversations with the prosecutor promises to your client that you and/or the judge. may not be able to keep. • Don’t enter a plea agreement on • Don’t represent that you have not your client’s behalf without first received discovery materials from investigating all areas of potential the prosecutor when such materials defense. have been made available to you, or • Don’t ask for more time than represent that you have not received is needed when requesting a a particular document when you continuance. have not asked the prosecutor for it. • Don’t request last-minute • Don’t file motions that are continuances as a trial tactic, frivolous, or file certain motions especially in cases where witnesses only because you believe that such have to travel. motions are usually filed, or file last-minute motions with respect to matters about which you have long been aware.

for PROSECUTORS & DEFENSE ATTORNEYS DO • Do review and consistently follow • Do use third parties when possible the Supreme Court of Ohio’s to interview witnesses. If you must Professionalism Dos and Don’ts personally interview a witness, concerning Professionalism in especially a witness who is likely to the Courtroom and Working with be called to testify for the opposing Opposing Counsel and Other side, have a third person present Attorneys. during the interview to avoid the • Do be respectful of the time and possibility of your having to testify resources of opposing counsel. at trial as to what the interviewee Where discrepancies in resources actually said. exist, be reasonable. • Do know and follow the rules of • Do prepare clients, witnesses, evidence and rules of procedure. family, and friends for the • Do treat opposing counsel with the courtroom by explaining the rules utmost professionalism, even if you and procedures of court to them. disagree.

32 The DOs & DON’Ts of Conduct of Prosecutors & Defense Attorneys

for PROSECUTORS & DEFENSE ATTORNEYS DON’T • Don’t make statements to the court • Don’t use inappropriate body or the media concerning the strength language to try to persuade a jury. of your case prior to evaluating Examples include: fist pumping after discovery materials. a favorable ruling from the judge, • Don’t disparage or personally attack rolling eyes during a defendant’s opposing counsel. Don’t claim a or witness’s testimony, uttering prosecutor is “persecuting” your audible sighs, putting your head client. Don’t treat a defense attorney down on a table, nodding your as if he or she committed the alleged head in agreement, or shaking your . Don’t consider opposing head in disagreement during court counsel an enemy when opposing proceedings. counsel is simply doing his or her • Don’t feign ignorance of rules of respective job. courts, rulings made by the judge, • Don’t improperly suggest a judge or of evidence that was disclosed or opposing counsel has a political to you. For example, during a trial agenda or bias. Think carefully about or hearing, don’t refer to evidence how such statements may affect that has been excluded in limine or a client, a victim, or the public’s make comments about, or allude in perception of the quality of justice. questions to, evidence already held to • Don’t refer to your own personal, be inadmissible. political, or religious beliefs during a • Don’t hide evidence or fail to disclose criminal proceeding. witnesses. Don’t wait until the • Don’t misrepresent your by morning of trial to disclose witnesses telling a witness that you “work or evidence. with the court so you have to talk to • Don’t make unfair or derogatory me,” allow your investigator to make references to opposing counsel during such a representation, or discourage opening and closing statements. a witness from talking to opposing Trials are about facts and the counsel. arguments that fit them. Avoid any • Don’t have ex parte communications arguments or characterizations of with the judge about substantive opposing counsel’s case that are not issues or the merits of a case. based on the evidence.

PROSECUTORS & DEFENSE ATTORNEYS are officers of the court and responsible for the administration of justice. Keeping this in mind, they must proceed at all times with the diligence, integrity, and courtesy such an important endeavor requires.

33

DEPOSITIONS

35 DEPOSITIONS

If there is one area of the practice of law that consistently gives rise to an inordinate number of complaints about lack of professionalism, it is the area of depositions. Depositions, of course, are an extremely important and valuable component of our adversary system, but, if abused and mishandled, they can engender unnecessary and costly strife that impedes and undercuts the entire process. To help correct this situation, the Commission on Professionalism is publishing the following guidelines, a set of deposition “DOs and DON’Ts.” The commission believes that if lawyers follow these guidelines — which are consistent with, and to some extent provide specific amplification of, the Supreme Court’s Statements on Professionalism— lawyers will be able to use depositions to advance the legitimate interests of their clients, while, at the same time, treating all participants in the process, including deponents and opposing counsel, with courtesy, civility, and respect. It is not the commission’s intention to regulate or to suggest additional bases for discipline, but rather to facilitate the promotion of professionalism among Ohio’s lawyers. In short, by adhering to these guidelines, lawyers will be acting as professionals and in the manner that the courts expect. Therefore, as a lawyer who is scheduling, conducting or attending a deposition:

DO • Do review the local rules of deposition can proceed efficiently the where you are and expeditiously. practicing before you begin. • Do turn off all electronic devices • Do cooperate on scheduling. Rather for receiving calls and messages than unilaterally sending out a while the deposition is in progress. notice of deposition, call opposing • Do attempt to agree, either counsel first and cooperate on before or during the deposition, the selection of the date, time, to a reasonable time limit for the and place. Then send out a notice deposition. reflecting the agreed upon date. • Do treat other counsel and the • If, after a deposition has been deponent with courtesy and civility. scheduled, a postponement is • Do go “off record” and confer with requested by the other side, do opposing counsel, privately and cooperate in the rescheduling unless outside the deposition room, if you the requested postponement would are having problems with respect to be one of those rare instances that objections, the tone of the questions would adversely affect your client’s being asked or the form of the rights. questions. • Do arrive on time. • Do recess the deposition and call • Do be prepared, including the court for guidance if your having multiple copies of all off-the-record conversations with pertinent documents available in opposing counsel are not successful the deposition room, so that the in resolving the “problem.”

36 The DOs & DON’Ts of Depositions

DO • If a witness is shown a document, do • Do inform your client in advance make sure that you have ample copies of the deposition (if the client to distribute simultaneously to all plans to attend) that you will be counsel who are present. conducting yourself at the deposition • If a deponent asks to see a document in accordance with these “dos and upon which questions are being don’ts.” asked, do provide a copy to the deponent.

DON’T • Don’t attempt to “beat your opponent testimony sought is deemed by you to the punch” by scheduling a to be privileged, work product, or deposition for a date earlier than the self-incriminating, or if you believe date requested by your opponent for the examination is being conducted in deposition(s) that he or she wants to a manner as to unreasonably annoy or take. embarrass the deponent. • Don’t coach the deponent during the • Don’t take depositions for the deposition when he or she is being purpose of harassing a witness or in questioned by the other side. order to burden an opponent with • Don’t make speaking objections to increased litigation expenses. questions or make statements that • Don’t overtly or covertly provide are intended to coach the deponent. answers to questions asked of the Simply say “object” or “objection.” witness. • Don’t make rude and degrading • Don’t demand conferences or breaks comments to, or ad hominen attacks while a question is pending, unless on, deponent or opposing counsel, the purpose is to determine whether a either when asking questions or privilege should be asserted. objecting to questions. • Don’t engage in conduct that would • Don’t instruct a witness to refuse be inappropriate in the presence of a to answer a question unless the judge.

37

PROFESSIONALISM IN THE COURTROOM

39 PROFESSIONALISM IN THE COURTROOM To be truly professional when appearing in court, a lawyer must act in a proper manner. Such conduct goes beyond complying with the specific rules of procedure and of evidence promulgated by the Supreme Court of Ohio and with local rules issued by trial courts and individual judges. Proper conduct in the courtroom also includes adhering to common principles of civility and respect when dealing with the judge, court staff, and opposing counsel. The Supreme Court of Ohio Commission on Professionalism has prepared this list of “DOs and DON’Ts,” to illustrate a number of principles so that lawyers appearing in Ohio courts will fully understand what is expected of them. In creating this list, the commission does not intend to regulate or to provide additional bases for discipline, but rather to help promote professionalism among Ohio’s lawyers. By following the principles of civility and respect, lawyers will enhance their professionalism, as well as the dignity of courtroom proceedings.

DO • Do be prepared for your • Do begin any argument on the participation in any court record before the judge or jury, by conference or proceeding. saying, “May it please the court.” • Do wear appropriate courtroom • Do stand whenever you address the attire when appearing in court. If judge in the courtroom. you are a male attorney, always • Do show all exhibits to opposing wear a tie. counsel before showing the exhibit • Do advise your clients on how to a witness. to dress appropriately for any • Do ask the judge’s permission scheduled court appearance. before approaching a witness • Do be on time for all court during trial or before publishing conferences and proceedings. an exhibit to the jury during an (The best practice is to arrive at examination. least five minutes in advance of • Do speak clearly and enunciate the scheduled time.) when addressing the judge or a • If you are going to be late, do call witness. the courtroom so those who are • Do agree to stipulate to facts that waiting are properly informed. are not in dispute if they will not • Do turn your cell phone and all adversely affect your client. other electronic devices off or • Do respect the private nature of a to silent mode before entering a sidebar conference; avoid making courtroom. statements or arguments at a level • Do be courteous when addressing that may be overheard by the jury. the judge and opposing counsel, • Do inform the judge in advance both in the courtroom and in of any delays in the scheduling of . witnesses.

40 The DOs & DON’Ts of Professionalism in the Courtroom

DO • Do treat court personnel with the • Do verify immediately the same respect you would show the availability of necessary participants judge. and witnesses after a date for a • Do be accurate when setting forth hearing or trial has been set, so you pertinent facts and pertinent rules of can promptly notify the judge of any law. problems. • Do answer questions from the judge • During final argument, do be directly and forthrightly. circumspect when summarizing • Do bring to the judge’s attention any testimony that contains profane possible ethics issues as soon as you words. become aware of them. DON’T • Don’t make ad hominen attacks on • Don’t display anger in the courtroom. opposing counsel or be sarcastic in • Don’t make facial objections during either your oral arguments or written testimony or during arguments by briefs. opposing counsel. • Don’t shout when making an • Don’t bring a beverage to the trial objection in a court proceeding. table unless it is in a non-descript • Don’t make any speaking objections glass or cup and only if you in a jury case except for an determined that the judge does not explanatory single word or two object to a beverage on the trial table. (e.g., “,” “leading,” “no • Don’t lean or sit on the trial table, foundation”). DO request a side bar jury box, or any other furniture in the conference if you must expound on courtroom. your objections. • Don’t move freely around the • Don’t interrupt opposing counsel or courtroom once a proceeding the judge, no matter how strongly you is underway without obtaining disagree with what is being said. permission from the judge. • Don’t argue with the judge or react • Don’t celebrate or denounce a negatively after the judge has ruled as it is delivered, and also advise on an objection or other matter. clients and interested spectators not • Don’t tell the judge that he or she has to do so. DO behave civilly with committed a reversible error. opposing counsel when leaving the • Don’t tell the judge that another judge courtroom. has ruled a different way without providing a copy of the other judge’s written opinion.

41 the supreme court of ohio commission on professionalism The Supreme Court of Ohio created the Commission on Professionalism in September 1992. As stated in Gov.Bar R. XV, the commission’s purpose is to promote professionalism among attorneys admitted to the practice of law in Ohio. The commission aspires to advance the highest standards of integrity and honor among members of the profession. The 15-member commission includes five judges and two lay members appointed by the Supreme Court, six attorneys appointed by the Ohio Metropolitan Bar Association Consortium and Ohio State Bar Association, and two administrators or . The duties of the commission include: • Monitoring and coordinating professionalism efforts and activities in Ohio courts, bar associations and law schools, and in outside Ohio • Promoting and sponsoring state and local activities that emphasize and enhance professionalism • Developing educational materials and other information for use by judicial organizations, bar associations, law schools and other entities • Assisting in the development of law school orientation programs and curricula, new lawyer training and continuing education programs • Making recommendations to the Supreme Court, judicial organizations, bar associations, law schools and other entities on methods for enhancing professionalism • Overseeing and administering a mentoring program for attorneys newly admitted to the practice of law in Ohio.

43 chairs of the commission on professionalism

• Douglas R. Dennis Esq., 2019 • Judge Richard L. Collins Jr., 2018 • Mark Petrucci Esq., 2017 • Judge Jeffrey Hooper, 2016 • Mary Cibella Esq., 2015

• Michael L. Robinson Esq., 2014 • Marvin L. Karp Esq., 2013 • Judge Michael P. Donnelly, 2012 • Lee E. Belardo Esq., 2011 • Professor Stephen R. Lazarus, 2009-2010 • Monica A. Sansalone Esq., 2007-2008 • Judge David Sunderman, 2005-2006 • Barbara G. Watts, 2003-2004 • Judge C. Ashley Pike, 2001-2002 • John Stith, 1999-2000 • Richard Ison, 1997-1998 • Kathy Northern, 1995-1996 • Richard Ison, 1992-1994

44 For more information about attorney professionalism or the Commission on Professionalism, contact Bradley Martinez at 614.387.9317 or [email protected].

45 Published by the Supreme Court of Ohio Commission on Professionalism Updated January 2021

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65 South Front Street, Columbus, Ohio 43215-3431